92 Decision Citation: BVA 92-28983
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
Sitting at Houston, Texas
DOCKET NO. 88-10 712 ) DATE
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THE ISSUE
Entitlement to an effective date earlier than January 24,
1984 for the grant of a 100 percent disability evaluation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Elving L. Torres, Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to May
1969.
This matter initially came before the Board of Veterans'
Appeals (the Board) of the Department of Veterans Affairs
(VA) from a decision of the Houston, Texas Regional Office
(VARO), which denied appellant's January 1984 claim for
service connection, for increased ratings for service
connected disabilities, and for a total rating on the basis
of individual unemployability. The notice of disagreement
was received at VARO in July 1984. The statement of the
case was issued in August 1984. The appeal to the Board was
received at VARO in October 1984.
The case was originally received at the Board in April
1986. The Board remanded the case to obtain medical
evidence in July 1986. The case was returned to the Board
in August 1987. The case was returned to VARO to afford the
veteran a personal hearing before a Travel Section of the
Board, sitting in Houston, Texas, which was held in January
1988. The case was returned to the Board in April 1988.
The Board requested an independent medical expert opinion in
September 1988.
In its decision in July 1990, the Board granted service
connection for schizophrenia and a temporary total rating
based on psychiatric hospitalization, denied service
connection for headaches and an increased rating for
duodenal ulcer disease, and remanded the issues of an
increased rating for post-traumatic stress disorder (PTSD)
and a total rating based on individual unemployability.
By rating decision in April 1991, the rating for the service
connected schizophrenia with PTSD was increased from 50 to
100 percent schedular evaluation, and a total disability
rating based on individual unemployability due to service
connected disabilities, was awarded effective on January 24,
1984, the date of original claim. In May 1991, the veteran
stated that he had been disabled "longer than 1984," and
requested a hearing before a Travel Section of the Board.
A statement of the case regarding the issue of an earlier
effective date was provided in March 1992.
A personal hearing before a Travelling Member of the Board,
sitting in Houston, Texas, was held in July 1992. The issue
on appeal was received at the Board in August 1992.
Appellant has been represented throughout this appeal by
Disabled American Veterans.
REMAND
Our preliminary review of the evidence of record regarding
the issue that is currently on appeal, an earlier effective
date, disclosed that a rating action in January 1970 granted
in part service connection for anxiety reaction and for
duodenal ulcer, and assigned a 10 percent disability rating
for each disability. Rating action in January 1976
increased the ratings for anxiety to 30 percent and for
duodenal ulcer to 40 percent, for a combined 60 percent
service connected disability evaluation.
Rating actions in October 1976 and in April 1977 denied
higher disability ratings for the service connected
disabilities. Rating action in March 1978 continued the
ratings assigned. The veteran filed a notice of
disagreement, but he did not complete his appeal after he
was provided a statement of the case in May 1978.
By rating action in June 1983, the disability rating for the
service connected psychiatric disorder was increased from 30
to 50 percent, but no appeal was initiated after the veteran
was notified of that decision. In January 1984, the veteran
filed a claim for increased ratings, service connection, and
a total rating based on individual unemployability.
Subsequent denials by the agency of original jurisdiction
were appropriately appealed. Following the Board's decision
in July 1990, granting in part service connection for
schizophrenia as part of the service connected psychiatric
disorder to include PTSD, a rating action in April 1991
assigned a 100 percent schedular evaluation for the now
service connected schizophrenia, undifferentiated type, with
PTSD, effective on January 24, 1984, the date the claim had
been filed. The rating decision noted that, with service
connection granted for schizophrenia, the veteran's service
connected disabilities prevented employability.
In his May 1991 notice of disagreement with the effective
date of the 100 percent disability rating, the veteran
stated that he was claiming he had been disabled "longer
than 1984." At the hearing before a Travelling Member of
the Board in July 1992, he stated that the effective date
should be "sometime earlier than January 24, 1984." In view
of various final rating actions previous to the grant of a
100 percent disability rating in April 1991, the specific
date as to when the veteran believes that the 100 percent
should be made effective should be clarified.
Accordingly, the case is REMANDED for the following action:
Request the veteran, through the
representative of record, to clarify what
specific date he believes the 100 percent
rating for his psychiatric disorder
should be made effective and the basis
for his claiming a date different from
January 24, 1984. The appellant should
also clarify whether he is claiming clear
and unmistakable error in a final
decision either on the basis of a failure
to award a 100 percent schedular rating
for the psychiatric disorder or a failure
to award a total rating for
unemployability due to service-connected
disabilities. Any final decision which
the appellant is claiming is erroneous
should be identified, as well as the
basis for any error alleged. VARO should
then adjudicate the current issue
considering the specific effective date
and contentions advanced by the veteran
and his representative.
If the benefit sought on appeal continue to be denied,
appellant and the representative of record should be
provided a supplemental statement of the case with regard to
the additional development and should be afforded an
opportunity to respond. The record should thereafter be
returned to the Board for further appellate consideration,
as appropriate.
No action by appellant is required until further notice is
received. The Board intimates no opinion as to the ultimate
disposition warranted in this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.